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Hazard Education Before Renovation of Target Housing; State of Colorado Authorization Application

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Environmental Protection Agency (EPA).


Notice; request for comments and opportunity for public hearing.


On June 29, 2007, EPA received an application from the State of Colorado requesting authorization to administer a program in accordance with section 406(b) of the Toxic Substances Control Act (TSCA). This program ensures that owners and occupants of target housing are provided information concerning potential hazards of lead-based paint (LBP) exposure before certain renovations are begun on that housing. In addition to providing general information on the health hazards associated with exposure to lead, the lead hazard information pamphlet advises owners and occupants to take appropriate precautions to avoid exposure to lead-contaminated dust and LBP debris that are sometimes generated during renovations. EPA believes that distribution of the pamphlet will help to reduce the exposures that cause serious lead poisonings, especially in children under age 6, who are particularly susceptible to the hazards of lead.


Comments must be received on or before August 11, 2008. In addition, a public hearing request may be submitted on or before July 2, 2008.


Submit all written comments and/or requests for a public hearing identified by docket identification (ID) number EPA-HQ-OPPT-2007-0698, by one of the following methods:

  • Federal e-Rulemaking Portal: Follow the on-line instructions for submitting comments.
  • Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
  • Hand Delivery: OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID number EPA-HQ-OPPT-2007-0698. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930. Such deliveries Start Printed Page 36073are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
  • Instructions: Direct your comments to Docket ID number EPA-HQ-OPPT-2007-0689. EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through, or e-mail. The, website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of the comment and with any disk or CD ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at:​epahome/​dockets.htm.
  • Docket: All documents in the docket are listed in the docket index available in To access the electronic docket, go to, select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the website to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at, or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301, Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure.
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Amanda Hasty, Pollution Prevention, Pesticides and Toxics Program (P3T), U.S. EPA, Region 8, 1595 Wynkoop St., Denver, CO 80202-1129; telephone number: (303) 312-6966; e-mail address:

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I. General Information

A. Does this Action Apply to Me?

You may potentially be affected by this action if you perform renovations of target housing for compensation in the State of Colorado. Target housing is defined in the Code of Federal Regulations (see 40 CFR 745.103) as any housing constructed prior to 1978. Potentially affected entities may include, but are not limited to:

  • Renovators (North American Industrial Classification System (NAICS) codes 236116, 236118), e.g., general building contractors/operative builders, renovation firms, individual contractors, and special trade contractors like carpenters, painters, drywall workers and lathers, “home improvement” contractors.
  • Multi-family housing owners/managers (NAICS codes 531311, 531110), e.g., property management firms and some landlords.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The NAICS codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 745.82. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through, or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the CD ROM or disk as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

- Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

- Follow directions. EPA may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.

- Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

- Describe any assumptions and provide any technical information and/or data that you used.

- If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

- Provide specific examples to illustrate your concerns and suggest alternatives.

- Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

- Make sure to submit your comments by the comment period deadline identified.

II. Background

A. What Action is the Agency Taking?

The State of Colorado has provided a self-certification letter stating that its pre-renovation notification program meets the requirements for authorization of a state program under section 404 of TSCA and has requested approval of the Colorado pre-renovation notification program. Therefore, pursuant to section 404 of TSCA, the Start Printed Page 36074program is deemed authorized as of the date of submission, June 29, 2007. If EPA subsequently finds that the program does not meet all the requirements for approval of a state program, EPA will work with the state to correct any deficiencies in order to approve the program. If the deficiencies are not corrected, a notice of disapproval will be issued in the Federal Register and a Federal program will be implemented in the state.

Pursuant to section 404(b) of TSCA (15 U.S.C. 2684(b)), EPA provides notice and an opportunity for a public hearing on a state or tribal program application before approving the application. Therefore, by this notice EPA is soliciting public comment on whether the state of Colorado application meets the requirements for EPA approval. This notice also provides an opportunity to request a public hearing on the application. If a hearing is requested and granted, EPA will issue a Federal Register notice announcing the date, time, and place of the hearing. EPA's final decision on the application will be published in the Federal Register.

B. What is the Agency's Authority for Taking this Action?

On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 102-550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. That Act amended TSCA (15 U.S.C. 2601 et seq.) by adding Title IV (15 U.S.C. 2681-2692), titled Lead Exposure Reduction.

Section 402 of TSCA (15 U.S.C. 2682) authorizes and directs EPA to promulgate final regulations governing Lead-Based Paint (LBP) activities in target housing, public and commercial buildings, bridges and other structures. Those regulations are to ensure that individuals engaged in such activities are properly trained, that training programs are accredited, and that individuals engaged in these activities are certified and follow documented work practice standards. Under section 404 of TSCA (15 U.S.C. 2684), a state may seek authorization from EPA to administer and enforce its own lead-based paint activities program.

In the Federal Register of August 29, 1996 (61 FR 45777) (FRL-5389-9), EPA promulgated final TSCA section 402/404 regulations governing LBP activities in target housing and child-occupied facilities (a subset of public buildings). Those regulations are codified at 40 CFR part 745, and allow both states and Indian tribes to apply for program authorization. Pursuant to section 404(h) of TSCA (15 U.S.C. 2684(h)), EPA was authorized to establish the Federal program in any state or tribal nation without its own authorized program in place by August 31, 1998.

States and tribes that choose to apply for program authorization must submit a complete application to the appropriate regional EPA office for review. Those applications will be reviewed by EPA within 180 days of receipt of the complete application. To receive EPA approval, a state or tribe must demonstrate that its program is at least as protective of human health and the environment as the Federal program, and provides for adequate enforcement (section 404(b) of TSCA, 15 U.S.C. 2684(b)). EPA's regulations (40 CFR part 745, subpart Q) provide the detailed requirements a state or tribal program must meet in order to obtain EPA approval.

A state may choose to certify that its lead-based paint activities program (40 CFR part 745, subpart L) and/or pre-renovation notification program (40 CFR part 745, subpart E) meets the requirements for EPA approval, by submitting a letter signed by the Governor or Attorney General stating that the program meets the requirements of section 404(b) of TSCA. Upon submission of such certification letter, the program is deemed authorized (15 U.S.C. 2684(a)). This authorization becomes ineffective, however, if EPA disapproves the application or withdraws the program authorization.

III. State Program Description Summary

The following is a program description summary provided by the State of Colorado.


Pursuant to Colorado Revised Statute, section 25-7-1104(2), the Division may delegate the implementation or enforcement of standards under Title 25, Part 11, C.R.S., to local health or building departments, as appropriate, if requested by such a local department. If the Division approves such a delegation to a local health or building department, the Division shall be the primary agency responsible for overseeing and coordinating administration and enforcement of the program and Mr. Steven D. Fine shall serve as the primary contact with EPA (40 CFR 745.324(b)(1)(ii)).


At this time, there is no delegation to any local health or building department; therefore, the Division has not developed a description of the functions to be performed by each agency. If the Division ever performs such a delegation, it will submit to EPA the required information as detailed in 40 CFR 745.324(b)(1)(iii).


Information necessary to demonstrate that the proposed regulation No. 19 is at least as protective as the Federal Program (40 CFR 745.324(b)(2)).


Description demonstrating program contains all elements specified in 40 CFR 745.326.

Procedures and requirements for the distribution of lead hazard information to owners and occupants of target housing before renovations for compensation (40 CFR 745.325(a)(1)).

Regulation No. 19, Part B, includes standards and procedures for the distribution of lead hazard information to owners and occupants of target housing before renovations for compensation. These standards and procedures include:

- Clear standards for identifying home improvement activities that trigger the pamphlet distribution requirements at Regulation No. 19, Part B, Section I, Scope and Applicability and Section II.E. (40 CFR 745.326(b)(1)).

- Procedures for distributing the lead hazard information to owners and occupants of the housing prior to renovation activities requirements at Regulation No. 19, Part B, Section III., Information Distribution Requirements (40 CFR 745.326(b)(2)).

An approved lead hazard information pamphlet meeting the requirements of section 406 of TSCA, as determined by EPA (40 CFR 745.325(a)(2)). For distribution of a lead hazard information pamphlet, Regulation No. 19, Part B, has a definition of pamphlet, like the EPA definition of pamphlet, which requires either:

- The lead hazard information pamphlet developed by EPA under section 406(a) of TSCA, titled Protect Your Family from Lead in Your Home at Regulation Number 19, Part B, Section II.D. (40 CFR 745.326(c)(1)); or

- An alternate pamphlet or package of lead hazard information that has been submitted by the State or Tribe, reviewed by EPA, and approved by EPA for use in that State or Tribe. Such information must meet the content requirements prescribed by section 406(a) of TSCA, and be in a format that is readable to the diverse audience of housing owners and occupants in that State or Tribe at Regulation No. 19, Sections II.D. (40 CFR 745.326(c)(2)).


Analysis of Regulation No. 19, Part B Compared to Federal Program in 40 CFR part 745, subpart E.Start Printed Page 36075

The following analysis demonstrates that the State of Colorado's program is at least as protective as the elements of the Federal program.


Purpose of the proposed regulation. The purpose of the Pre-Renovation Education in Target Housing Regulation Number 19, Part B, is to reduce exposure to lead hazards that may result from renovation activities conducted in “target housing,” including dwelling units and common areas. Regulation Number 19, Part B, will not regulate activities in public or commercial buildings. Regulation Number 19, Part B, includes provisions to establish requirements for certain persons who perform renovations of target housing for compensation to provide a lead hazard information pamphlet to the owner and occupant of such housing prior to commencing the renovation.


Program elements. The Division has followed EPA's regulation at 40 CFR part 745 and the State Legislature's statutory requirements to develop Regulation Number 19, Part B, to be both consistent with the federal program and acceptable to EPA. Implementation of Regulation Number 19, Part B, is an appropriate step to continuing to prevent exposing children to lead hazards that may result from certain renovation activities in “target housing.” The scope and applicability of Regulation Number 19, Part B, (Section I., Scope and Applicability) has the same meaning as the scope and applicability of EPA's program (40 CFR 745.82).

Regulation Number 19, Part B, includes or incorporates definitions (Section II, Definitions) that are nearly identical to EPA's program (40 CFR 745.83). This includes the clear requirement that the information must meet the requirements of TSCA 406(a) or be approved by EPA pursuant to 40 CFR 745.326.

The information distribution requirements provided by Regulation Number 19, Part B, (Section III., Information Distribution Requirements) are nearly identical to EPA's (40 CFR 745.85). The information distribution requirements of Regulation Number 19, Part B, include renovations in dwelling units (section III.A.), renovation in common areas (Section III.B.), and written acknowledgements (Section III.C.) which correspond almost word for word to EPA requirements (40 CFR 745.85(a), (b) and (c)). Regulation No. 19, Part B, includes recordkeeping requirements (Section IV., Recordkeeping Requirements) designed to match those of the EPA (40 CFR 745.86).

Also included in Regulation Number 19, Part B, is sample language for acknowledgement and certification statements (Section V., Acknowledgement and Certification Statements). The sample language in this section was designed to match the clear intent and have the same meaning as EPA program's sample language (40 CFR 745.88).

5.3.3 Conclusion

This analysis of substantive program elements demonstrates that Colorado's Pre-Renovation Education in Target Housing Regulation Number 19, Part B, is at least as protective of human health and the environment as the Federal regulations developed pursuant to TSCA section 406.

IV. Federal Overfiling

Section 404(b) of TSCA makes it unlawful for any person to violate, or fail or refuse to comply with, any requirement of an approved State or Tribal program. Therefore, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of an authorized state or tribal program.

V. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this document in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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List of Subjects

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Dated: May 27, 2008.

Robert E. Roberts,

Administrator, Region VIII.

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[FR Doc. E8-14401 Filed 6-24-08; 8:45 am]